| Between:
Annette Kogolo, Butcher Wise, LC, CN, Harry Yungabun, Hitler Pamba, HB, Ivan McPhee, Jimmy Nerrima, Joe Brown, Wilfred Steele, Mona Chuguna, Percy Bulagardie, PC, PS, Ronnie Jimbidie, Stalin Wodigar, Tommy May, Warford Budjiman and JP on behalf of the Ngurrara People(APPLICANTS) and
The State of Western Australia, Shire of Derby West Kimberley and Martu People (RESPONDENTS)
Judge: Gilmour J
Where made: Perth
Determination:
Native title is held communally by the Ngurrara People:
Native title exists over the determination area. It consists of exclusive native title rights.
The native title rights and interests that exist over land in the determination area include:
- the rights to possession, occupation, use and enjoyment of the area to the exclusion of all others.
In relation to flowing and subterranean waters in the exclusive native title area, the following non-exclusive rights apply:
- the right to hunt, fish and gather from the water; and
- the right to take and use the water for personal, domestic and non-commercial communal purposes.
Non-native title rights and interests that exist within the determination area can be summarised as
- Existing petroleum interests under the Petroleum and Geothermal Energy Resources Act 1967 (WA);
- Rights and interests, including licences and permits, granted by the Crown pursuant to statute or in the exercise of executive power;
- Rights or interests held under laws of the State or the Commonwealth including under the Rights in Water and Irrigation Act 1914 (WA);
- The right to access land by an employee or agent or instrumentality of the State, the Commonwealth, or local Government authority as required in the performance of his or her statutory or common law duties where such access would be permitted to private land;
- Rights of the public to access any roads within Determination Area where access to such roads is in accordance with the common law;
- Rights of the holders of petroleum interests under the Petroleum Act 1967 (WA) to use the roads and tracks in Determination Area in order to have access to such petroleum interests. This does not allow for any upgrade, extension, widening or other improvement to the road or track other than work done to maintain such road or track in reasonable repair;
- Any existing public access rights to and enjoyment of waterways or the beds and banks or foreshores of waterways or stock routes.
Provisions Relevant to the Native Title Rights
The native title rights and interests include the right to take and use ochre as ochre is not a mineral pursuant to the Mining Act 1904 (WA), but does not include the right to other minerals, petroleum and geothermal energy resources as defined in the Mining Act 1904 (WA), the Mining Act 1978 (WA), the Petroleum Act 1936 (WA) and the Petroleum and Geothermal Energy Resources Act 1967 (WA).
The Yanunijarra Aboriginal Corporation is to be the prescribed body corporate for the purposes of the Native Title Act 1993 (Cth).
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